On behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Michael J. Lauterbach of Nash Podvin, Attorneys at Law, S.C.,
Wisconsin Rapids.

Respondent

ATTORNEYS:

On behalf of the defendants-respondents, the cause was
submitted on the briefs of John R. Jokela of John Jokela Law Firm LLC, Wausau, and R. Duane Harlow,
assistant attorney general, and J.B.
Van Hollen, attorney general.

2010 WI App 54

COURT OF APPEALS

DECISION

DATED AND FILED

March 25, 2010

David
R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2009AP564

Cir. Ct.
No.2008CV175

STATE OF WISCONSIN

IN COURT OF
APPEALS

DeBoer Transportation, Inc.,

Plaintiff-Appellant,

v.

Charles Swenson and Labor and Industry Review Commission,

Defendants-Respondents.

APPEAL
from a judgment of the circuit court for WoodCounty:edward
f. Zappen, jr., Judge.Reversed
and cause remanded with directions.

Before Dykman, P.J., Lundsten and Higginbotham, JJ.

¶1LUNDSTEN, J. Charles Swenson worked as
a truck driver for deBoer Transportation.The question in this case is whether, under Wis. Stat. § 102.35(3),[1]
deBoer Transportation illegally refused to rehire Swenson after he recovered
from a work-related injury.The Labor
and Industry Review Commission concluded that deBoer failed to show “reasonable
cause” for its refusal to rehire Swenson, as required by § 102.35(3).We conclude that the commission’s reliance on
an incorrect interpretation of the reasonable cause standard caused it to err in
ruling against deBoer.Accordingly, we
reverse the circuit court’s order, and remand for dismissal of Swenson’s claim
against deBoer.

Background

¶2Swenson was employed by deBoer when he injured his knee at
work.After several months away from the
job, Swenson’s doctor cleared him to return to work.Swenson contacted deBoer and began a
reorientation program that deBoer uses for drivers who have been off work for
more than sixty days.Swenson cooperated
with various requirements, including a physical examination, drug screening, a
review of company policies, and a short road test required by the State.However, when deBoer insisted that Swenson
complete an overnight “check-ride,” the reorientation came to a halt.

¶3DeBoer’s “check-ride” requires a returning driver to be away
from his or her home for a few days or longer so that another deBoer driver can
evaluate driving skills.[2]Prior to his injury, Swenson drove a daily
route for deBoer that allowed him to be home during part of every day to
provide care for his terminally ill father.If Swenson participated in the overnight check-ride, he would have
needed to locate and personally pay for a care provider for part of each day
that he was away on the check-ride.

¶4Swenson asked deBoer if he could complete his check-ride
“locally” so that it would not interfere with his daily routine of caring for
his father.Alternatively, Swenson told
deBoer that, if the company would pay the additional cost of caring for his
father during the overnight check-ride, Swenson would complete the ride.Because deBoer refused to consider making
alternative check-ride arrangements or to pay for additional care for Swenson’s
father, Swenson refused to cooperate with the check-ride and was not rehired.

¶5The commission accepted as true the testimony of deBoer
employees that deBoer had never before made an exception to the check-ride
policy.It is unclear how long deBoer’s
overnight check-ride policy had been in place, but there is no evidence that Swenson
was treated differently than other returning drivers.

¶6The commission seemingly accepted deBoer’s assertion that the
purpose of the check-ride was to ensure that it employed safe drivers and that
the policy was reasonable on its face.DeBoer did not, however, attempt to prove that applying the policy in
Swenson’s particular case was necessary to ensure safety, that it could not
tailor a check-ride for Swenson that would permit him to personally provide
daily care for his father, or that accommodating Swenson’s situation with his
father would be a financial burden.

¶7The commission focused on whether it was reasonable for
deBoer to fail to accommodate Swenson’s request.The commission concluded that deBoer did not
demonstrate that accommodating Swenson would have compromised safety or been a
financial burden and, therefore, deBoer failed to show reasonable cause for its
refusal to rehire.The circuit court
upheld the commission’s decision, and deBoer appealed.

Any employer who without reasonable cause refuses to rehire
an employee who is injured in the course of employment, where suitable
employment is available within the employee’s physical and mental limitations,
… has exclusive liability to pay to the employee the wages lost during the
period of such refusal, not exceeding one year’s wages.

(Emphasis added.)The parties do not dispute that Swenson was
injured in the course of employment or that deBoer “refuse[d] to rehire”
Swenson within the meaning of the statute.The dispute is over whether that refusal was based on “reasonable
cause.”

¶9The case law sets forth a shifting burden of proof.First, the employee must show that he or she
“has been injured in the course of employment and subsequently is denied
rehire.”West Bend Co. v. LIRC,
149 Wis. 2d
110, 123, 438 N.W.2d 823 (1989).If an
employee makes this prima facie showing, the burden shifts to the employer to
show “reasonable cause” for its refusal to rehire.Id.This burden may be met with proof of a valid business
reason for its action.Ray
Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118, 123, 519 N.W.2d 713 (Ct. App.
1994).

¶10Whether the facts as found by the commission give rise to
reasonable cause is a question of law.Id. at
122.The parties dispute what level of
deference we should apply to the commission’s application of the reasonable
cause standard.We conclude for the
reasons explained below, however, that the commission’s application of the
standard has no reasonable basis in the law or the facts of this case.Accordingly, the level of deference we apply
to the commission’s decision does not matter.An unreasonable application of a statutory standard will not be upheld
under any level of deference.See DOR
v. A. Gagliano Co., 2005 WI App 170, ¶23 n.7, 284 Wis. 2d 741, 702
N.W.2d 834 (“[C]ourts will not uphold an unreasonable agency interpretation of
a statute, regardless of the level of deference applied ....”).

¶11We begin with a summary of the commission’s decision.The commission determined that, although
deBoer’s check-ride policy had a safety purpose, was of long standing, and was
uniformly enforced, deBoer nonetheless failed to show reasonable cause because
deBoer did not demonstrate that accommodating Swenson by deviating from its
check-ride policy would have compromised safety or would have been a financial
burden.Consistent with this reasoning,
the commission argues on appeal that it is not enough for deBoer to show that
it refused to rehire Swenson by uniformly applying its check-ride policy, which
the commission acknowledges “may have some legitimate business purpose behind
it.”According to the commission, deBoer
also needed to present evidence that persuaded the commission that it would
have been an unreasonable burden to accommodate Swenson’s non-work,
non-injury-related request.[3]

¶12DeBoer argues that this reasoning amounts to an incorrect
interpretation of the statute because it requires something more than
reasonable cause.We agree.

¶13As noted above, there is no evidence that deBoer singled out
Swenson in applying its check-ride policy.In addition, it is undisputed that deBoer’s longstanding practice was
based on deBoer’s belief that the check-ride is a means of ensuring safe
driving and that, as a general matter, having safe drivers is a legitimate
business concern for deBoer.And, there
is no evidence that deBoer’s refusal to accommodate Swenson had anything to do
with Swenson’s injury.To the contrary,
the evidence discloses that deBoer was in the process of rehiring Swenson and
had taken several steps toward that end.So far as the evidence shows, the only reason Swenson was not rehired
was because he did not participate in the check-ride.When deBoer declined to accommodate Swenson
by tailoring a check-ride to meet Swenson’s needs or by paying Swenson’s
additional care expenses, and when Swenson refused to incur the expense of
paying for care for his father while he was away on the check-ride, the result
was that Swenson was not rehired.

¶14We conclude that the reasonable cause standard in Wis. Stat. § 102.35(3) does not
contemplate requiring employers to either deviate from a facially reasonable
and uniformly applied policy, or explain why it would be burdensome to do so,
when a returning employee requests the deviation to accommodate a non-work and
non-injury-related personal need.The
policy here was facially reasonable because the policy furthers deBoer’s
interest in employing safe drivers.To
hold otherwise would place an unreasonable burden on employers. SeeDielectric
Corp. v. LIRC, 111 Wis.
2d 270, 274, 279, 330 N.W.2d 606 (Ct. App. 1983) (employer did not violate§ 102.35(3) when discharging
injured employee pursuant to an absenteeism policy premised on objective
criteria).We also observe that at least
one pertinent case suggests that the commission and courts should not
second-guess facially reasonable business decisions, at least not in the
absence of evidence that an employer’s refusal to rehire was because of the
employee’s injury.See Ray Hutson, 186 Wis. 2d at 123 (decision
to eliminate injured employee’s position in order to reduce costs was
sufficient to establish reasonable cause, and commission erred by requiring
employer to show some actual gain in efficiency).

¶15Moreover, it is not reasonable to suppose that the legislature
intended to impose on employers the burden of judging which non-work,
non-injury-related requests need to be accommodated if reasonably possible.What if Swenson’s accommodation request was
based on his desire to continue daily volunteer work at a home for the
elderly?What about a request based on
his desire not to miss classes that he had paid for to enrich his life, such as
woodworking or dance classes?We do not
think the legislature intended to require employers to assess which non-work,
non-injury-related requests merit accommodations and which do not.

¶16It may be true, as the commission asserts, that deBoer could
have met its safety concerns by requiring a less demanding check-ride tailored
specifically to Swenson.But that does
not mean that requiring Swenson to cooperate with deBoer’s normal check-ride
was unreasonable.Indeed, the only
reason Swenson gave for not cooperating with a multiple-overnight check-ride
was because the policy interfered with a non-work, non-injury-related issue in
Swenson’s life.Having concluded that
deBoer was not obligated to accommodate the care needs of Swenson’s father,
there remains no basis for concluding that deBoer acted unreasonably in
requiring that Swenson comply with its normal check-ride.It is unreasonable to interpret the
“reasonable cause” standard in Wis.
Stat. § 102.35(3) as requiring employers to precisely tailor
reorientation programs to the anticipated assignment of a returning
employee.

¶17Accordingly, we conclude that the commission erred by
determining that deBoer failed to show reasonable cause.Reasonable cause is shown here by deBoer’s
uniform application of its longstanding safety testing procedure to Swenson,
combined with the absence of evidence supporting an inference that deBoer
refused to rehire Swenson because of his injury.Stated differently, under the facts in this
case, there is no basis for the conclusion that deBoer did not have reasonable
cause to require Swenson to participate in the check-ride and, therefore, no
basis for the conclusion that “reasonable cause” was lacking.

¶18We stress that our decision should not be read as holding that the
commission must accept as reasonable all longstanding uniformly applied
policies that are facially reasonable.There
may be circumstances in which the application of a facially reasonable business
practice, even one of long standing, to a returning employee does not
constitute “reasonable cause.”For
example, in some instances the connection between a proffered facially valid
business reason and the demand on the employee may be too tenuous to supply
reasonable cause.Just as the
legislature could not have intended to impose on employers the burden of
judging which non-work, non-injury-related requests need to be accommodated if
reasonably possible, the legislature could not have intended to give employers
free rein to impose any burden on returning employees, so long as that burden
is facially related to a valid business purpose.

¶19Up to this point, we have focused our attention on whether the
commission applied an incorrect reasonable cause standard.We now address the portion of the
commission’s decision that declared deBoer’s proffered reason for not rehiring
Swenson a pretext for discrimination.The law is unclear on whether the question of pretext is subsumed in the
reasonable cause analysis or whether, instead, pretext is a separate issue that
is addressed only after an employer establishes reasonable cause.See Ray Hutson, 186 Wis. 2d at 123-24.We need not resolve this lack of clarity
here, however, because the commission’s pretext analysis adds nothing to its
reasonable cause analysis.The
commission’s sole reason for finding that deBoer’s check-ride requirement was a
pretext was deBoer’s failure to present evidence that it would have been an
unreasonable burden to accommodate Swenson in providing care for his father.[4]

Conclusion

¶20In sum, because the commission’s decision depended on an
incorrect interpretation of the reasonable cause standard in Wis. Stat. § 102.35(3), we reverse
the circuit court’s order confirming the commission’s decision and remand for
dismissal of Swenson’s claim against deBoer.

By the Court.—Judgment reversed and
cause remanded with directions.

No.

2009AP564(D)

¶21DYKMAN,
P.J. (dissenting).The majority opinion starts off well,
explaining that this is an administrative review dependent on the meaning of Wis. Stat. § 102.35(3) (2007-08).[5]It quotes the statute.But the train runs off the track at ¶13, when
the majority uses deBoer’s uniform and long-standing practice to interpret
“reasonable cause” under the statute.It
is not surprising then that, having used an incorrect analysis, the majority
reaches the wrong conclusion.

Any employer who without
reasonable cause refuses to rehire an employee who is injured in the course of
employment, where suitable employment is available within the employee’s
physical and mental limitations, upon order of the department and in addition
to other benefits, has exclusive liability to pay to the employee the wages
lost during the period of such refusal, not exceeding one year’s wages.In determining the availability of suitable
employment the continuance in business of the employer shall be considered and
any written rules promulgated by the employer with respect to seniority or the
provisions of any collective bargaining agreement with respect to seniority
shall govern.

The statute says nothing about
long-standing and uniform practices.It
says nothing about what an employee must say or do to be rehired.Instead, § 102.35(3) focuses only on an
employer’s duty to rehire an injured employee.

¶23We are not interpreting this statute for the first time.The supreme court explained what Wis. Stat. § 102.35(3) was all
about in West Allis School District v. DILHR, 116 Wis. 2d 410, 422-23, 342 N.W.2d 415
(1984):

Hence, in accord with long accepted traditional
approaches to workers compensation statutes, sec. 102.35(3) must be liberally
construed to afford the aggrieved worker additional compensation.

….

Also, as stated above, sec.
102.35(3), Stats., as a part of the workers compensation act, must be liberally
construed to effect as fully as possible the beneficent objectives of the
workers compensation act.It was well settled
at the time of the enactment of sec. 102.35(3) that the compensatory aspects of
ch. 102 were to be liberally construed.

….

It is clear from the plain
words of the statute that its purpose is to prevent discrimination against
employees who have previously sustained injuries and to see to it, if there are
positions available and the injured employee can do the work, that the injured
person goes back to work with his former employer.This fundamental purpose, and the objective
of worker protection explicit in the workers compensation act, makes the
construction urged by the school district inappropriate….[I]t would defeat the clear legislative
purpose of providing compensation to the employee of not more than a year’s
wages should the refusal to rehire be found unreasonable.

¶25I am not sure why the majority has concluded that LIRC’s
conclusion was unreasonable, but I am sure what it has not done:it has not interpreted Wis. Stat. § 102.35(3) in the waythe supreme court and the court of
appeals have told us we must.The statute
is short, unambiguous, and to the point.It nowhere suggests that extraneous matters that the majority considers
important, such as a long-standing and uniformly enforced rule, an ailing
father or woodworking and dance classes are relevant to whether an employer’s
test for rehire is reasonable.These
factors are important only to the majority.It is apparent to me that before refusing to rehire an injured employee,
the employer must determine only whether it has reasonable cause to refuse to
rehire.Or, put in terms of standard of
review, we examine whether LIRC properly found that the employer’s decision not
to rehire was or was not reasonable.That is the beginning and the end.

¶26The majority writes that “[t]he commission seemingly accepted
deBoer’s assertion that the purpose of the check-ride was to ensure that it
employed safe drivers and that the policy was reasonable on its face.”Majority, ¶6. Where does that come from?What LIRC really wrote was that deBoer

did not credibly explain how the applicant’s fitness to
resume over-the-road driving could only have been evaluated by an overnight
road trip.If it was the night driving
the employer was concerned about, it could have required the applicant to have
gone out with an observer on a night driving trip, with a return home the
following morning.This would have been
precisely the type of route the applicant had driven in his pre-injury
employment.The employer’s unyielding
insistence that there be an extended overnight trip was unexplained and
unreasonable.

LIRC Decision, ¶1.

¶27The second paragraph of LIRC’s decision, and the Administrative
Law Judge’s lengthy decision, which LIRC adopted, can be reduced to this:“DeBoer unreasonably refused to accommodate
Swenson’s reasonable request for an alternative test ride which would allow him
to attend to his ailing father.”While I
agree with this conclusion, it is not necessary to go there.Wisconsin Stat. § 102.35(3) says nothing
about accommodating an injured employee’s request for accommodation.Adding accommodation to a clear statutory
mandate complicates and confuses the real issue.The majority’s focus on this will o’ the wisp
is a classic example of an analysis led astray by a red herring.

¶28The only relevant question is whether LIRC erred in finding
that deBoer did not have reasonable cause to refuse to rehire Swenson because
Swenson did not perform a several-day road trip.LIRC found that this was unnecessary to
establish his fitness to perform the type of employment he held before his
injury.

¶29We do not review LIRC’s answer to this question de novo.We recently said that we afford LIRC great
weight deference in interpreting worker’s compensation statutes “[b]ased on the
[c]ommission’s duty to administer the worker’s compensation statutes, its
longstanding interpretation of these statutes, its expertise, and the benefit
of consistent decisions.”McRae
v. Porta Painting, Inc., 2009 WI App 89, ¶7, 320 Wis. 2d 178, 769 N.W.2d 74.We also explained that “[u]nder the great
weight deference standard of review we will uphold the [c]ommission’s
interpretation and application of the statute to the facts found unless the interpretation
is unreasonable,” and that “[a]n unreasonable interpretation of a statute is
one that directly contravenes the words of the statute, is clearly contrary to
legislative intent, or is otherwise without rational basis.”Id.,
¶21 (citation omitted).The majority
appears to choose Number 3, but fails to explain why the part of LIRC’s
decision I have quoted is irrational.[6]

¶30The majority concludes that because the employer’s “check-ride”
policy was of long standing and uniformly enforced, and had some relation to
safety, the application of this policy to Swenson must be reasonable.[7]There is nothing magical about a
long-standing but arbitrary policy.A
uniformly enforced capricious policy does not somehow become reasonable.Suggesting that some uniformly enforced,
long-standing governmental and commercial policies about race, gender and
ethnicity must be reasonable because they were or are long standing and
uniformly enforced is easily recognized as bogus.

¶31So that leaves us with safety.Facially, who could disagree that upholding safety requirements for
truck drivers is reasonable?But even
safety involves a cost-benefit analysis.Cloverleaf intersections are not required for every intersection of
every road.That is where reasonableness
enters the picture.LIRC makes decisions
about reasonableness every time it hears a case under Wis. Stat. § 102.35(3).That is always a legal conclusion intertwined with facts.It is probably no coincidence that this is
also the definition of the “great weight” or highest standard of deference we
use when reviewing administrative decisions.See Clean Wisconsin, Inc. v. PSC, 2005 WI 93, ¶41, 282 Wis. 2d 250, 700
N.W.2d 768.So, for me, the question is
whether I should defer to LIRC’s conclusion intertwined with facts that the
employer’s refusal to rehire Swenson was not reasonable.I do not believe that whether an employer’s
policy is long standing or uniformly enforced should have anything to do with
the majority’s or my decision.

¶32The majority concedes that if the first paragraph of LIRC’s
decision is considered without considering LIRC’s paragraph two and the ALJ’s
decision, Swenson might prevail because LIRC found deBoer’s check-ride policy
unreasonable as to Swenson.Majority,
¶11 n.3.By turning LIRC’s two
paragraphs into one, the majority avoids a necessary inquiry.What would the majority do if all LIRC wrote
was the first paragraph of its decision?The majority isn’t saying.I
conclude that had LIRC done so, the court of appeals would have issued a per
curiam decision or summary order affirming the trial court and LIRC.Thus, the majority is really telling us that
LIRC’s second paragraph and the ALJ’s decision are poison pills which doom
anything else LIRC has found or concluded.I conclude that the second paragraph of LIRC’s decision together with
the ALJ’s decision are unnecessary to our analysis, under whatever standard of
review we might use.[8]I am not willing to accept that we are to
scour administrative decisions for any error we can find, and having found one,
blow up the whole decision even though we would affirm the agency based on the
balance of its decision.I cannot agree
with this new concept.

¶33We grant trial courts far more deference than the majority
gives LIRC under situations similar to this one.Administrative agencies and trial courts both
exercise discretion.“[I]f the trial
court’s exercise of discretion demonstrates consideration of improper facts or
a mistaken view of the law, the reviewing court need not reverse if it can
conclude ab initio that facts of record applied to the proper legal standard
support the trial court’s conclusion.”State
v. Pittman, 174 Wis. 2d
255, 268-69, 496 N.W.2d 74 (1993).Why
cannot we do the same for LIRC’s determination that deBoer’s reason for not
re-hiring Swenson was unreasonable?If
LIRC’s comments about Swenson’s ailing father show that it considered improper
facts or that it held a mistaken view that the statute permitted or required
consideration of Swenson’s father’s illness, why cannot we do as we do for trial
courts:ignore the improper facts and
apply the relevant facts found by LIRC to the statute?We can, and if we do, we would affirm.[9]The majority has turned standard of review on
its head.Instead of searching for
reasons to affirm LIRC, the majority has searched for reasons to reverse.

¶34I will give great weight to LIRC’s decision.While safety is important for truck drivers,
there is a disconnect between requiring Swenson to spend several days of
overnight over-the-road driving when all that Swenson had done and would do if
rehired would be day trips with single overnight stays.Swenson did a day trip for his employer,
apparently with no problems.LIRC was
entitled to believe that no useful purpose would be served by requiring Swenson
to take an extended overnight trip when his future employment would have
nothing to do with that type of driving and therefore deBoer’s insistence on a
multi-day, overnight check-ride as a condition of employment was unreasonable.I have explained why I do not join in the
majority’s decision.Therefore, the best
I can do is respectfully dissent.

[1] All
references to the Wisconsin Statutes are to the 2007-08 version unless
otherwise noted.

[2] The
commission did not resolve a factual dispute as to how long deBoer was going to
require that Swenson be away from home for his check-ride.DeBoer presented testimony supporting a
finding that Swenson was told it would likely be less than five days.Swenson testified that he was told he would
have to be on the road for two or three weeks.

[3] If
part of the commission’s decision is considered in isolation, it might be read
as containing a conclusion about the reasonableness of deBoer’s check-ride
policy that is distinct from the commission’s consideration of the reason
Swenson requested an accommodation.However, when the commission’s decision is considered as a whole, it is
readily apparent that the commission considered the reasonableness of deBoer’s
refusal to deviate from its check-ride policy in light of what it considered to
be the legitimate need Swenson had to provide care for his father.

[4] The
majority chooses not to spend time responding to specifics in the dissenting
opinion.At the same time, we caution
that, in several respects, the dissent misreads the majority opinion,
attributing to it reasoning and conclusions that it does not contain.Accordingly, readers should look to the
source for our analysis and conclusions, and not to the dissent’s
characterizations of them.

[5]All references to the Wisconsin Statutes are to the
2007-08 version unless otherwise noted.

[6] Even
looking at this case without the guidance of West Allis School District v.
DILHR, 116 Wis.
2d 410, 342 N.W.2d 415 (1984), and McRae v. Porta Painting, Inc., 2009
WI App 89, 320 Wis. 2d 178, 769 N.W.2d 74, the majority’s conclusion that
LIRC’s decision is unreasonable is tenuous.“Reasonableness” has a history.We do not review a court’s decision as to the reasonableness of some act
de novo.Wassenaar v. Panos, 111
Wis. 2d 518, 525, 331 N.W.2d 357 (1983), identified reasonableness as a
question of law, though, because that conclusion was intertwined with factual
findings supporting the conclusion, stated that an appellate court should give
weight to the trial court’s decision.The Wassenaarstandard has been imported into administrative
reviews.West Bend Education Ass’n v. WERC,
121 Wis. 2d 1, 12, 357 N.W.2d 534 (1984), reads:“Where a legal question is intertwined with
factual determinations or … where the agency’s interpretation and application
of the law is of long standing, a court should defer to the agency which has
primary responsibility for determination of fact and policy.”(Footnote omitted.)

[7] DeBoer
might also have a long-standing and uniformly enforced policy requiring its
janitors to take a check-ride or to attend three supreme court oral arguments
as a condition of re-employment after an injury.But that would not require LIRC to find that
these long-standing and uniformly enforced requirements were reasonable.The focus of our review should be on the
rationality of LIRC’s reasoning as to the reasonableness of the conditions for
re-employment as applied to each returning employee.We should defer to LIRC’s decisions on this
issue.

The
simple accommodation the applicant requested for the testing process was
reasonable, and it would not have jeopardized any of the employer’s safety
concerns.The applicant merely asked for
an alternative schedule so that he could care for his terminally ill father,
but the employer gave no explanation for failing to even consider this
request.As noted by the administrative
law judge, the employer had the burden of demonstrating reasonable cause for
discharging the applicant, but failed to carry that burden.The employer’s safety director refused to
discuss any possible accommodation with the applicant, resulting in what
constituted a discharge.The courts have
regularly held that the statute must be liberally construed to effectuate its
beneficent purpose of preventing discrimination against injured employees.The employer’s actions evinced an
unreasonable disregard for the applicant’s circumstances, leading to the
credible inference that the work injury did play a part in the discharge.The employer violated both the spirit and the
letter of the law set forth in Wis. Stat. § 102.35(3).

While
I have concluded that paragraph two of LIRC’s decision is unnecessary,I do not agree with the majority’s decision
even if I consider paragraph two.The
ultimate question is whether deBoer’s refusal to rehire Swenson was
unreasonable.Reasonableness is a large
enough umbrella to cover deBoer’s response to Swenson’s request for
accommodation.The majority tells us
that any non-work, non-injury request for accommodation to an employer’s
long-standing and uniformly enforced rehire policy makes an employer’s decision
to refuse to rehire the employee reasonable.That conclusion ignores the plain meaning of Wis. Stat. § 102.35(3).

[9] LIRC
has not had the opportunity to consider this dispute between LIRC and Swenson
under the interpretation the majority gives to Wis. Stat. § 102.35(3).That interpretation makes significant changes in the analysis parties and
LIRC have used to determine eligibility in refusal to rehire cases.At the very least, we should reverse and
remand with instructions to remand to LIRC for consideration of deBoer’s
liability under the majority’s new analysis. A reviewing court would then know whether LIRC
would come to a different conclusion under the interpretation of § 102.35(3)
that the majority has promulgated today.